It's déjà vu: Nursing homes do something apparently awful. Government comes in with a big stick and hits them over the head. Nursing homes ask for it. Government responds with a knee jerk. It's the long-term care version of Punch ‘n’ Judy.
This is the feeling I get as I watch unfold the saga of “private equity long-term care” vs. “the Congressional watchdogs” unfold. I won't recap the private equity story initiated by the New York Times in September and discussed in (among other venues) my last month's editorial, except to say that, on its face, the private equity owners really do look like they're asking for trouble. Profits up, quality reportedly down, accountability avoided—it's pretty tough to “spin” this positively, and the burden of disproof is on them.
But it's been disheartening to see some of the recommendations emerging from Congress's hearings on this: more transparent and consistent documentation of ownership, more detailed reports on staffing, more complex cost reports, public identification of CMS's “poor performers,” tougher regulatory enforcement. There is nothing wrong with these ideas per se—they seem like a rational response. But then, haven't we seen this sad show before? Tough, detailed regulations, followed by wrangling over meanings, followed by uneven enforcement, followed by resentment, paper compliance, and clever evasion—all of which leads to more regulation.
Isn't this a sign by now that basic change is needed, that we need a new paradigm of regulation and quality improvement? Isn't it time we tried a quality improvement system that instead of causing grief, resentment, confusion and confrontation, actually improved things? Columnist Vivian Tellis-Nayak had a radical suggestion in his last article for us (“Disenchantment among LTCLeaders—and its toll on quality,” October 2007, p. 20), an article that drew extreme plaudits from readers (see “Letters,” p. 8, this issue): Let's give the real owners of these multifacility chains “immunity from prosecution” in return for their taking an active interest in learning about, promoting, and executing quality improvement at the staff level.
I'd add my own suggestion: adopting the QIO (Quality Improvement Organization) model—i.e., showing, telling, assisting with and reinforcing best practices, which is a common-sense training approach that works as well for long-term care as it does for any other walk of life.
In short, let's show everyone how to do better and then get out of the way and let them try. And if they fail consistently or, worse, appear still to be more interested in chasing the almighty dollar than in doing a good job, then let's lower the legal boom on them. No more civil money penalties—criminal prosecution all the way.
I call it the trip-wire approach to regulation. Providers are allowed plenty of room to operate and do things as they see fit, but if they consistently stray from decency and positive caring, they do jail time.
I know, this approach is about as likely to happen as my being run over by Santa's sleigh this Christmas. But it would be nice to think that finally, this time, we'll get regulation right.
RICHARD L. PECK, EDITOR-IN-CHIEF
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